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"Shall" or "Must"

Serious question please. Is the word, "Shall" being rep 2ski12/05/18
What about should? How's that different from shall? superttthero12/05/18
Bryan Garner doesn't like "shall" in contracts or statutes. blawprof12/05/18
Don't really care what these plain language legal experts sa hairypalms12/05/18
You should go with “done gotta.” therewillbeblood12/06/18
Although the word “shall” is generally construed to be m blawprof12/06/18
The Aguilar quote above was perplexing, so I had to go to th jeffm12/06/18
Let's see: must is mandatory, shall can be construed as perm wallypancake12/06/18
Agreed. I consider shall to be sloppy drafting dingbat12/06/18
Not wanting to go down the road of, " depends on the definit 2ski12/06/18
This is a first for me. I've never had anyone dispute that s lolwutjobs12/06/18
Also wtf at this: "[s]imilarly, the word 'may' is generally lolwutjobs12/06/18
I have recently been puzzled by the use of "may not" rather legalace12/07/18
I don't think "may" has a permissive connotation in the cont jeffm12/07/18
A couple of the guys in my office have started defining "sha lilgub12/07/18
“Must” means that some outside force is compelling the a brokelawyer12/07/18
This. 180. wutwutwut12/07/18
I like "will". cult4512/07/18
2ski (Dec 5, 2018 - 8:23 pm)

Serious question please.

Is the word, "Shall" being replaced with, "Must" in contracts? Maybe I'm old school but shall is always - must do. But recent rulings are now saying shall implys, "may".

I understand the trend in contracts now are leaning toward more plain language text, but I still think shall does not leave any wiggle room in a contract. ie. " X shall use Brand Z component in the formula"

What say you?

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superttthero (Dec 5, 2018 - 9:52 pm)

What about should? How's that different from shall?

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blawprof (Dec 5, 2018 - 10:05 pm)

Bryan Garner doesn't like "shall" in contracts or statutes.

He says, "My own practice is to delete shall in all legal instruments and to replace it with a clearer word more characteristic of American English: must, will, is, may or the phrase is entitled to."

Bryan Garner, Shall We Abandon Shall?, ABA Journal, August 2012.

Google: bryan garner shall

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hairypalms (Dec 5, 2018 - 10:17 pm)

Don't really care what these plain language legal experts say, I will continue to use shall in my contracts. I would be interested in seeing any links to recent rulings suggesting that "shall" is construed as permissive as opposed to mandatory.

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therewillbeblood (Dec 6, 2018 - 6:19 am)

You should go with “done gotta.”

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blawprof (Dec 6, 2018 - 7:04 am)

Although the word “shall” is generally construed to be mandatory, it may be construed as directory. . . Similarly, the word “may” is generally construed as permissive, but can be interpreted as mandatory depending on the context in which it is used. In re Aguilar, 344 S.W.3d 41, 50 (Tex. App. 2011)

The term “ ‘shall’ means something on the order of ‘must’ or ‘will,’ ” . . . and “has an ordinary meaning of imperative obligation, leaving no discretion or choice for the actor.” Carmen Grp., Inc. v. Xavier Univ. of Louisiana, 41 F. Supp. 3d 8, 12 (D.D.C. 2014)

Under Massachusetts law, the legislature's use of the word “ 'shall' . . . customarily connotes a 'mandatory or imperative obligation.' " Lawless v. Steward Health Care Sys., LLC, 894 F.3d 9, 22 (1st Cir. 2018) (construing Massachusetts statute).

Search for Words and phrases on Westlaw.

wp(shall)

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jeffm (Dec 6, 2018 - 3:58 pm)

The Aguilar quote above was perplexing, so I had to go to the opinion. It cited Ramsay, which was based on an inartful juxtaposition of "shall" and "may" within a forum selection clause.

This is from the opinion:

"The most challenging issue in this appeal is presented by the forum-selection *626 clause contained in paragraph 19 of the agreement:

All actions or proceedings arising direction, indirectly or otherwise, in connection with, out of, related to, or from this agreement or any transaction covered hereby, shall be governed by the law of Illinois and may, at the discretion and election of [ADM], be litigated in a court whose situs is within Illinois."

I did not read the entire opinion, but here is my understanding:

Ramsay filed suit in Texas. He admitted Illinois law would apply, but he claimed ADM was not entitled to dismissal (or transfer?) of the Texas proceedings. He claimed it said ADM may elect to litigate in an Illinois court but that ADM never made that election until *after* Ramsay filed his Texas suit. Ramsay claimed the contract did not expressly bar him from choosing Texas as the situs for the action. Thus, having done what he was permitted to do under the contract, the Texas court was the court of first choice and had dominant jurisdiction.

It is an interesting argument, but he lost.

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wallypancake (Dec 6, 2018 - 9:11 am)

Let's see: must is mandatory, shall can be construed as permissive. What would any lawyer drafting an airtight contract for his client do? Put in "must". What does OP want to do? Draft contract language that may be construed as permissive instead of simply using language that everyone agrees is mandatory.

This discussion is laughable.

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dingbat (Dec 6, 2018 - 11:07 am)

Agreed.
I consider shall to be sloppy drafting

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2ski (Dec 6, 2018 - 10:41 am)

Not wanting to go down the road of, " depends on the definition of IS" Remember Clinton impeachment! ha.

I'm in the shall is THE word camp. Especially in context. You never find shalls alone. There are always pages of other specific terms that use shall. So if it is ever questioned, the intent becomes obvious.

Unless, your client has deep pockets and wants to wiggle out of something by arguing the word shall. Would result is $$$$ to council!

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lolwutjobs (Dec 6, 2018 - 11:34 am)

This is a first for me. I've never had anyone dispute that shall is NOT the same as must. This has been very informative.

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lolwutjobs (Dec 6, 2018 - 1:59 pm)

Also wtf at this: "[s]imilarly, the word 'may' is generally construed as permissive, but can be interpreted as mandatory depending on the context[.]"

May can be construed as mandatory? I am genuinely questioning my grasp of English.

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legalace (Dec 7, 2018 - 12:34 pm)

I have recently been puzzled by the use of "may not" rather than "cannot," "must not," or "shall not." To my mind, "May not" closely resembles "might not."

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jeffm (Dec 7, 2018 - 3:23 pm)

I don't think "may" has a permissive connotation in the context of "may not." You may not reply doesn't give you permission not to reply.

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lilgub (Dec 7, 2018 - 4:08 pm)

A couple of the guys in my office have started defining "shall" in the defined terms. To the extent this shift exists, that has removed all doubt in a number of the agreements we've drafted. I thought it was redundant, but I guess not.

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brokelawyer (Dec 7, 2018 - 8:00 pm)

“Must” means that some outside force is compelling the actor to act, “shall” means the actor is affirmatively agreeing to do this particular thing. In contracts, “shall” is more accurate.

Sure it sounds like a stodgy white male legalese etc., but it’s also just effective word choice.

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wutwutwut (Dec 7, 2018 - 8:27 pm)

This. 180.

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cult45 (Dec 7, 2018 - 9:55 pm)

I like "will".

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